Kelly Thomas case: 3rd Fullerton officer charged

Sept. 27, 2012

Updated Aug. 21, 2013 1:17 p.m.

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An evidence photo shown in a Santa Ana courtroom on May 7, 2012, shows then-Fullerton police officer Joseph Wolfe immediately following an altercation that ultimately lead to the death of Kelly Thomas, a homeless man in Fullerton. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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An evidence photo shown in a Santa Ana courtroom on May 7, 2012, shows Fullerton police officer Joseph Wolfe immediately following an altercation that ultimately lead to the death of Kelly Thomas, a homeless man in Fullerton. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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Ex-Fullerton policeman Joe Wolfe, at far left, leaves Superior Court with one of his attorneys Michael Nasatir, third from left, in Santa Ana Thursday afternoon. Wolfe, who was indicted Thursday, was the first officer to strike mentally ill transient Kelly Thomas during the July 2011 melee that led to Thomas' death. He has been indicted by the Orange County grand jury. H. LORREN AU JR., THE ORANGE COUNTY REGISTER

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A picture showing the contents of the trunk of then-Fullerton police Officer Joseph Wolfe's car, including his baton, is submitted as evidence during a preliminary hearing for former Fullerton police officer Manuel Ramos and former Fullerton police officer Jay Cicinelli in April. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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Ron Thomas, father of Kelly Thomas, is briefly overcome with emotion as he talks about his son before the Fullerton City Council in September. STEVEN GEORGES, FOR THE REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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An image of Kelly Thomas, at age 33, was among items displayed at a press conference in Los Angeles, Wednesday, September 7, 2011. JEBB HARRIS, THE ORANGE COUNTY REGISTER

An evidence photo shown in a Santa Ana courtroom on May 7, 2012, shows then-Fullerton police officer Joseph Wolfe immediately following an altercation that ultimately lead to the death of Kelly Thomas, a homeless man in Fullerton. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

By LARRY WELBORN, VIK JOLLY and LOU PONSI / THE ORANGE COUNTY REGISTER

SANTA ANA – Former Fullerton policeman Joe Wolfe, who appears on surveillance video to be the first officer to land a blow on mentally ill transient Kelly Thomas during the July 2011 melee that led to Thomas' death, has been indicted by the Orange County grand jury.

Wolfe was accused in the indictment of one felony count of involuntary manslaughter and one count of the use of excessive force, the Orange County District Attorney's Office said Thursday.

The grand jury heard testimony from 10 witnesses and examined 113 exhibits of evidence over three days, beginning Sept. 19, before returning an indictment Monday for the officer's role in the July 5, 2011, incident at the Fullerton Transportation Center that was captured on surveillance video, the office said.

If convicted, Wolfe faces a maximum sentence of four years in state prison.

Wolfe surrendered to the court midafternoon Thursday, pleaded not guilty and was released on $25,000 bail. He is scheduled for a pretrial hearing Nov. 2 before Superior Court Judge William Froeberg.

The surveillance video appears to show Wolfe swinging his baton at the back of Thomas' leg during the encounter that ultimately involved six on-duty police officers.

He joins two other former Fullerton police officers as defendants in the death of Thomas, a schizophrenic transient who was well-known in the downtown Fullerton area.

Ex-officer Manuel Ramos was charged by the Orange County District Attorney's Office in September 2011 with second-degree murder and involuntary manslaughter, becoming the first Orange County lawman to be accused of murder in connection with an incident that occurred while in uniform and on duty.

Ex-Cpl. Jay Cicinelli was charged at the same time with involuntary manslaughter and assault under color of authority. Both Ramos and Cicinelli are out on bail pending a Nov. 30 hearing on a defense motion to dismiss charges.

The District Attorney's Office said it has actively continued its "investigation and legal review" since it filed charges against Ramos and Cicinelli. It decided to seek an indictment against Wolfe "following extensive legal and factual analysis and development of evidence," it said in a statement.

When Orange County District Attorney Tony Rackauckas announced the filing of charges against Ramos and Cicinelli, he also said there was insufficient evidence – at the time – to file charges against Wolfe.

Instead, prosecutors in his office presented evidence – including the surveillance video – this month to the grand jury, which issued the indictment.

One of Wolfe's attorneys, Vicki Podberesky, said after his arraignment: "We kind of expected (the indictment), unfortunately. Basically, we feel our client is innocent and the original decision by the D.A. to not charge him was the right one.

"He is a dedicated law enforcement officer who has never had any accusations like this levied against him before."

She and Michael Nasatir, who also is representing Wolfe, issued a joint statement, saying "whether this change in course (by prosecutors) is the result of well-meaning but misguided external pressure upon the District Attorney's Office or a political effort to quell perceived public unrest," they are confident their client will be exonerated of all criminal wrongdoing.

Thomas' father, Ron Thomas, said he was hoping for a second-degree murder charge against Wolfe but is pleased he is being charged with something.

"I'm very glad that the D.A. continued looking into Wolfe," Thomas said. "I'm glad he didn't give up on Wolfe."

"(Wolfe) was there to slaughter Kelly. Kelly was trying to get away, and he never tried to apprehend him, but he did continue to beat him severely."

Thomas died July 10, 2011, when his life support was turned off five days after the confrontation.

Ramos and his partner Wolfe were responding to reports of someone trying to open doors of parked cars when they approached Thomas as he stood shirtless near a bus bench, as seen on surveillance videotape that is the focal point of the criminal case.

The video shows Ramos, 39, questioning Thomas for about 15 minutes before the encounter escalated into violence.

Wolfe appeared to deliver the first blow as the interrogation became heated, striking the back of Thomas' leg with his baton, according to the videotape. Ramos then joined the fray and the two officers grappled with Thomas before four other officers – including Cicinelli – arrived at the scene and piled on, according to the video.

Cicinelli, 42, is seen on the videotape apparently using a Taser to jolt Thomas, and then appearing to smash the device into the struggling man's face.

When filing charges against Ramos and Cicinelli, Rackauckas said Wolfe stood several feet away and was searching Thomas' backpack while Ramos' was threatening Thomas.

But Rackauckas added in September 2011 that he believed the evidence did not show Wolfe was aware of the threat delivered by Ramos.

Dozens of supporters of Kelly Thomas, however, kept pressure on prosecutors to file charges against Wolfe, often showing up in court and at City Council meetings with signs demanding that Wolfe be charged.

All three officers no longer work for the Fullerton department.

"The Fullerton Police Department has been actively involved in this investigation," said Cpt. Dan Hughes, acting police chief. "I respect the work completed by the District Attorney's Office and the decision by the grand jury."

In November, Superior Court Judge William Froeberg is scheduled to hear arguments on a defense motion to dismiss charges against Ramos and Cicinelli.

"I believe that we have solid grounds to have the case dismissed," said defense attorney John Barnett, who is representing Ramos.

Barnett has argued that Thomas was belligerent, profane and combative and provoked the escalation of tension by refusing to identify himself. He contends in his dismissal motion that Thomas could "have avoided a physical altercation" by complying with Ramos' lawful commands.

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